U.S. v. Fell, No. 2:01CR1201.
| Decision Date | 26 May 2005 |
| Docket Number | No. 2:01CR1201. |
| Citation | 372 F.Supp.2d 773 |
| Parties | UNITED STATES of America v. Donald FELL. |
| Court | U.S. District Court — District of Vermont |
William B. Darrow, AUSA and Stephen D. Kelley, AUSA, for Plaintiff.
Alexander Bunin, Burlington, VT, Gene Primomo, Paul Volk, Burlington, VT, for Defendant.
Donald Fell was indicted on four counts arising out of the abduction and murder of Teresca King in late November 2000. Counts 1 and 2 charge Fell with carjacking and kidnapping, both with death resulting. These two counts are charged as capital crimes. This Opinion and Order explains the decision of the Court on several outstanding issues. First, the Court considers the in Limine motions that Fell filed on March 29, 2005 (Docs. 90, 91, 93, 94, 95, 96 & 97). Second, the Court examines the Government's Motion to Reconsider the Rule 12.2 Order (Doc. 100) and Fell's Motion in Limine Regarding Testimony of Michael Welner, M.D. (Doc. 107). The Court denies the Government's Motion to Reconsider and also denies Fell's Motion in Limine as premature. Finally, the Court grants in part and denies in part the Government's Motion in Limine requesting that the Court issue an order barring Donald Fell from introducing, at any stage of the trial, information about the parties' unsuccessful settlement negotiations (Doc. 103).
On March 29, 2005, defendant Donald Fell filed a Motion in Limine to Exclude Certain Evidence from 135 Robbins Street, No. 3, Rutland, VT (Doc. 90), a Motion in Limine to Exclude Lee's Statements at Trial (Doc. 91), a Motion in Limine to Exclude Evidence of Prior Acts (Doc. 93), a Motion in Limine to Exclude Officer's Statements (Doc. 94), a Motion in Limine to Exclude Mention of Aggravating Factors (Doc. 95), a Motion in Limine to Exclude Evidence of Inflammatory and Cumulative Photographs (Doc. 96), and a Motion in Limine to Exclude Evidence of Robert Lee's Death (Doc. 97). On April 29, 2005, the Government filed an Opposition of the United States to Defendant's in Limine Motions for the Guilt Phase of the Trial (Doc. 112).
Fell seeks to exclude the admission of certain evidence from 135 Robbins Street and requests that the Government be prohibited from offering evidence or eliciting testimony that makes reference to the condition of the bodies of victims Debra Fell and Charles Conway, their autopsies, the alleged murder weapons or potential motive for their murders. Fell claims this evidence is not relevant to the indictment1 and will unfairly prejudice him during the guilt phase of the trial. Fell argues that his statements admitting his presence and actions at 135 Robbins Street are sufficient to establish his actions.
The Government has agreed to limit its proof as to the crime scene at 135 Robbins Street to address any potential concerns of undue prejudice or cumulative evidence. The Government agreed to offer no photographs of the victims' autopsies unless requested by the medical examiner, no photographs of any victim after they were moved from the scene, no close-up photographs of the bodies of Charles Conway or Debra Fell, and no photographs of the victims' faces.
The series of photographs that the Government intends to offer show where the victims' bodies were found in the living room and the murder weapons found at the scene. The Government also plans to offer testimony of the medical examiner as to the victims' cause of death and a general, line drawn anatomical chart showing the approximate location of the victims' wounds.
The close-up photographs of the victims are excluded by agreement of the parties. Without reviewing the remaining photographs of Conway and Debra Fell, the Court is unable to rule on their admissibility. Therefore, the Court will permit introduction of those photographs only with the consent of the Court. Prior to showing the jury any pictures relating to 135 Robbins Street, the Government should submit them for Court review. The testimony of the medical examiner as to the victims' cause of death and the anatomical chart showing the approximate location of the wounds is admissible because it is relevant to the Government's case to show how Conway and Debra Fell died. The deaths of Conway and Debra Fell are intertwined with the kidnapping, carjacking, and firearm violations facing Fell and the series of events that led to the death of King. The medical examiner's testimony regarding the cause of death of Conway and Debra Fell will not be so prejudicial as to outweigh its probative value. Accordingly, Fell's motion is granted in part and denied in part.
Fell has moved "to exclude the admission of, or reference to, the custodial statements of Robert Lee" during the guilt phase of the trial. (Doc. 91). The Government has indicated that it will not offer the substance of Lee's statements in its case in chief at the guilt phase of the trial. Rather the Government seeks to introduce the fact that Lee made a statement to put Fell's statements in context, to counter an assertion that Fell accepted responsibility without prompting from external factors.
Lee's statements on December 1 and 2, 2000 are clearly inadmissible. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, the existence of the statements and timing of the statements are relevant to put Fell's confession in context. Thus, the content of Lee's statements is inadmissible, but the evidence concerning the existence and timing of Lee's statements are admissible.
Fell seeks to exclude the admission of evidence relating to prior acts that are not charged in the indictment or do not meet the criteria of Federal Rule of Evidence 404(b). Specifically, Fell requests that the Government be prohibited from offering evidence or eliciting testimony that makes reference to prior acts of Fell until Fell's counsel has been given a chance to object outside the presence of the jury.
On February 26, 2002, the Government filed a Notice of Intent to Introduce Evidence of Other Crimes, Wrongs and Acts on February 26, 2002 (Doc. 35). The nature of the evidence the Government sought to introduce include
1. That Donald Fell and Robert Lee murdered Debra Fell and Charles Conway.
2. All other crimes, wrongs or bad acts mentioned by Donald Fell in his several interviews with law enforcement during the period of November 30-December 2, 2000. Copies of tapes and reports of those interviews have previously been turned over to the defendant.
3. All other crimes, wrongs or bad acts mentioned in the testimony of Christian Kolojeski and Michael Leight, copies of which have previously been turned over to counsel for the defendant. (Doc. 35).
In the Government's Opposition to the in Limine Motions, it specifies the prior acts committed by Fell that it would like to introduce (Doc. 112). The Court presently has no access to the relevant interviews in which the prior bad acts are described. Fell has not responded to the Government's Opposition. If Fell has any objection to the specific acts that the Government seeks to introduce, he should file a motion to let the Court know what prior acts he seeks to exclude. At this time, the Court denies Fell's motion without prejudice.
This motion seeks to "exclude the admission of, or reference to, statements made by Detective Sergeant James Cruise of the Vermont State Police during the interrogation of Donald Fell on December 2, 2000, for the reason that they are not relevant to the indictment and will unfairly prejudice the defendant during trial." (Doc. 94). Fell requests that the Government be prohibited from offering evidence or eliciting testimony that makes reference to Sergeant Cruise's statements until his counsel has been given a chance to object outside the presence of the jury, or those statements be redacted from the tape and transcript before any attempt is made to offer them into evidence. In the Government's opposition, it agrees to redact Sergeant Cruise's comments and will present those proposed redactions to the defense counsel prior to offering Fell's statements at trial. Therefore, the Court grants Fell's Motion.
In this motion, Fell claims that reference to the aggravating factors is not relevant to any issue during the guilt phase of the trial and will unfairly prejudice Fell. The Government agrees that mention of those factors should not be presented to the jury during the guilt phase of the trial. Accordingly, the Court grants Fell's Motion in Limine to Exclude Mention of Aggravating Factors.
This motion seeks to exclude the admission of any photographs of Teresca King taken after her death that are beyond what is necessary to establish the Government's case. The Government has agreed not to present any autopsy photographs of King or any photographs of King after her body was moved at the crime scene. The Government has also agreed not to show any close-up photographs of King. Such photographs are therefore excluded.
However, the Government does seek to introduce photographs of the crime scene, including photographs of King taken from a distance of 10 to 15 feet. Without reviewing the photographs, the Court is unable to rule on their admissibility. Therefore, the Court will reserve judgment on those photographs. Prior to showing the jury any pictures relating to the death of King, the Government should submit them for Court review.
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